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Judgment
Rajesh Dayal Khare, J.—List has been revised. Learned Counsel for the Petitioner is present. Sri Madhav Jain and Sri Yasharth are not present even in the revised list.
The present writ petition has been filed for a writ of certiorari quashing the orders dated 23.10.2002 and 26.7.2000 passed by the Additional District Judge, Court No. 16, Agra whereby the appeal filed by the Petitioner was dismissed on the ground of delay and the restoration application/recall application filed by the Petitioner was disposed on the ground that the said Court does not have power to recall the order.
Learned Counsel for the Petitioner has contended that father of the Petitioner had filed Original Suit No. 212 of 1999 before the Ist Additional Civil Judge, Agra for permanent injunction which was dismissed vide judgment and order dated 2.4.1999. Aggrieved by the aforesaid order father of the Petitioner filed Misc. Civil Appeal No. 135 of 1999 before the District Judge, Agra which was subsequently transferred to the Court of XVIth Additional District Judge, Agra. During the pendency of the appeal father of the Petitioner died and the substitution application was filed within 90 days for getting the Petitioner substituted in place of his father. The substitution application was to be filed by 23.7.2000 as 90 days was to lapsed on the said date.
It is contended that the Petitioner fell ill on 22.7.2000 and remained ill till 28.8.2000. Accordingly, the substitution application was dismissed. It is stated that the substitution application was moved after the delay of three days as alleged by the learned Counsel for the Petitioner. It is contended that the lower Court as well as the appellate Court passed the orders impugned illegally and against the provisions of law.
In view of the aforesaid facts and circumstances and after perusal of the record, learned Counsel for the Petitioner had drawn the attention of the Court to Order XXII Rule 9 of the CPC and states that appellate Court has power to condone the delay, therefore, the impugned order is not sustainable in the eyes of law. Order XXII Rule 9 of the CPC is quoted herein below:
Effect of abatement or dismissal.-(1) Where a suit abates or is dismissed under this Order, no fresh suit shall be brought on the same cause of action.
(2) The Plaintiff or the person claiming to be the legal representative of a deceased Plaintiff or the assignee or the receiver in the case of an insolvent Plaintiff may apply for an order to set aside the abatement or dismissal; and if it is proved that he was prevented by any sufficient cause from continuing the suit, the Court shall set aside the abatement or dismissal upon such terms as to costs or otherwise as it thinks fit.
(3) The provisions of Section 5 of the Indian Limitation Act, 1877 (15 of 1877) shall apply to applications under Sub-rule (2).
[Explanation.- Nothing in this rule shall be construed as barring, in any later suit, a defense based on the facts which constituted the cause of action in the suit which had abated or had been dismissed under this Order]
A perusal of the aforesaid provisions clearly indicates that the Plaintiff or any person claiming to be the legal representative of the deceased Plaintiff or the assignee or his assignee may apply for an order to set aside the abatement or dismissal, if it is proved that he was prevented by any sufficient cause from continuing the suit, the Court shall set aside the abatement or dismissal upon such terms as to costs or otherwise as it thinks fit.
This clearly shows that the Court has power to dismiss or recall the order and therefore, the impugned order passed by the appellate Court dated 23.10.2002 and 26.7.2000 can not be sustained.
In view of the aforesaid facts and circumstances and the provisions of law, the order dated 26.7.000 is set aside. The writ petition is allowed. The matter is again sent back to the appellate Court to reconsider the matter strictly in accordance with law after hearing both the parties, which exercise shall be complete within two months from the date of production of a certified copy of this order which shall be produced before him within a period of 15 days from today.
With the aforesaid direction the writ petition is allowed. No order as to costs.